Is it lawful the use of P.D.O. “Champagne” in the trade name of a champagne flavour sorbet?

The sentence of last 20 December 2017 (lawsuit C-393/16) by the Court of Justice of the European Union pronounced on the limits of prohibition of use of a protected designation origin. The pronouncement will be appreciated by many agricultural and food field producers.

Here is the legal matter.

Concerning a litigation between the association of Champagne producers “Comité Interprofessionnel du Vin de Champagne” (CIVC) and the German supermarket chain Aldi regarding the sale by Aldi of a sorbet named “Champagner Sorbet” – allegedly violating the P.D.O. “Champagne” – the German Federal Court of Justice, to which finally the CIVC filed a petition, submitted to the EU Court of Justice a series of preliminary rulings concerning the interpretation of art. 118 quaterdecies of regulation no. 1234/2007 and art. 103 of the regulation n. 1308/2013, relating to the protection field of P.D.O. and P.G.I. in the wine sector.

These provisions provide that P.D.O. and P.G.I. may be used by any worker who sells wine in accordance with the relative protective procedural guideline, and that they are protected against any direct or indirect commercial use of the protected name, for comparable products that do not comply with the productive procedural guideline or to the extent that such use exploits the reputation of P.D.O. or P.G.I.

In particular, the European Judge was asked to clarify whether the use of a P.D.O. in the denomination of a food product not in compliance with the productive procedural guideline but containing an ingredient in compliance with the aforementioned specification, constitutes an illegal exploitation of this P.D.O. even if that designation corresponds to the reference practice of the relevant public and the ingredient is added in sufficient quantity to give an essential feature to the product.

The Court of Justice first of all clarified that the aforementioned provisions also apply in the cases, such as the one under consideration, of commercial use of a P.D.O. as part of the name of a food product containing an ingredient in compliance with the productive procedural guideline.

Provided that, such a use of a P.D.O. cannot be regarded as undue in itself, but the national Court has to judge on a case-by-case basis whether that use constitutes an undue exploitation of the reputation of the P.D.O.

The criterion to be considered by the national judge for the judgement will be based on whether the ingredient at issue gives the product an essential feature. For this purpose, the taste of the product must mainly be determined by this ingredient.

Therefore, the undue exploitation of the reputation of P.D.O. will occur only if the food product does not own as its essential feature a taste given mainly by the ingredient protected by the P.D.O.

The actual amount of this ingredient in the product composition will be a useful but not sufficient criterion in this evaluation.

Moreover, in reply to the other preliminary questions, the Court stated that such a use of a P.D.O. cannot constitute a usurpation, an imitation or an evocation according to the aforementioned regulatory provisions, as this P.D.O. is used directly in order to openly claim a taste quality linked to the P.D.O. itself.

In addition, the use of a PDO in the name of a food product, such as that in the main proceedings, shall not constitute a false or misleading indication likely to mislead the geographical origin of the product, or the nature or essential qualities of the product itself.

In a completely revolutionary way, the reported pronunciation would seem to liberalize, under certain conditions, the use of P.D.O. and P.G.I. in the denomination of compound products, regardless of the authorization by the producer associations or the provisions of productive procedural guidelines.

How this pronunciation harmonizes with different national regulations will be judged in the future.

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